Scriven v Sargent

In this case, the Court of Appeal considered an appeal relating to s 4.3.1 of the Integrated Planning Act 1997 and in particular, the application of the defence of honest claim of right under s 22 of the Criminal Code to that section. It contains a brief but interesting discussion of the principles relevant to the application of that defence.

Morrison JA and Boddice and Dalton JJ

19 May 2017

The applicant in this matter had been convicted and sentenced in the Magistrates Court for carrying out “assessable development” without an effective permit under the Integrated Planning Act 1997.  He sought leave to appeal his conviction claiming a defence of honest claim of right based on s 22 of the Criminal Code. [6]. The issue for the court was whether a claim as of right can be a defence to a prosecution for carrying out assessable development without a permit.

The assessable development the subject of the offence related to the clearing of native vegetation in the form of mallee and poplar box on some 1,819 hectares of land, without an effective permit. [9].

The basis of the argument advanced both at first instance and on appeal to the District Court was that the prosecution could not prove beyond reasonable doubt that the appellant did not have a permit or permits to clear the land and that regardless, he was not criminally responsible for any such offence since the clearing was done by him in the exercise of an honest claim of right, lacking any intention to defraud. [10].  The primary judge had held that the Magistrate was entitled to be satisfied beyond reasonable doubt that the applicant had no permit for clearing the land. The evidence was that the Act provided for notation of any such permits on the certificate of title to the relevant land, and, further, even if permits were granted without such a notation, there was evidence that permits would not have been granted for clearing the land in the way in which the applicant cleared the land. [11]. 

As to the question of the s 22 defence, the primary judge had held that the Magistrate did not err in concluding that s 22 does not answer the charge. It only operated if the right which a person honestly must believe to exist was a right which, if it did exist, would in fact be a defence to the charge. That is, a belief in a right to do something cannot constitute a defence if that right does not exist. [12].

Discussing the scope of the s 22 defence, in the lead judgment Boddice J tidily resolved the issue this way:

“Section 22 does not operate if the relevant belief would not constitute a defence to the relevant charge. It also does not operate if the relevant relief merely amounts to ignorance of the law”. [19].

The Court of Appeal had regard to the decision in Walden v Hensler (1987) 163 CLR 561 and the remarks of Deane J in that decision. Deane J had provided an example that distinguished between an offence of the extraction of materials owned by the crown, where the existence of an honest belief of ownership would found a defence under s 22 of the Code, and an offence which was a breach of a general conservation law, to which an honest belief of ownership could not constitute a defence for s 22, where ownership was simply irrelevant. [21].

After due consideration, the court affirmed the approach taken by the primary judge, to the effect that s 4.3.1 of the Integrated Planning Act 1997 created an offence of general application that operated irrespective of any proprietary or ownership right in respect of native vegetation.  Therefore, since the claimed right constituted no defence to the charge, s 22 of the Code had no application. [31]. The application for leave to appeal was refused. [33].

A de Jersey